Wendy J. Murphy: Steps to prevent another Penn State

Wendy J. Murphy

Tuesday

Nov 22, 2011 at 12:01 AMNov 22, 2011 at 9:17 PM

The Penn State scandal is but one example of the way we systematically fail to protect children from harm. Lawmakers are sprinting out of the woodwork to prop themselves up as heroes ready to fix what's broken, but not a single one has offered ideas that will stop us from enabling the very abuse we purport to abhor.

Amid all the opinion pieces and news stories that describe “solutions” to prevent a Penn State scandal from happening again, nary a voice suggests the kinds of changes that would actually protect children from harm.

Like many states, Pennsylvania has had a mandatory reporting law on the books for decades, but because the law lacks meaningful teeth, it rarely sees enforcement.

An amendment in the mid-1990s made things worse because it created an exception allowing individuals in employment settings to report abuse only to a supervisor, thus, enabling the conditions that led to a cover-up of abuse on Penn State's campus.

The vast majority of proposed reforms emphasize a need for training and education, as if one can be “taught” not to rape children or “trained” not to engage in a cover-up.

A few proposals talk about the need for better law enforcement, but they offer up weak-kneed ideas that won’t make a dent.

Here are reforms that would actually keep kids safe:

Congress should use its federal funding power under the Child Abuse Prevention and Treatment Act to force states to adopt laws that require ALL adults with reason who believe a child has been abused to file reports with child welfare agencies.

U.S. Senator Bob Casey has partly proposed using the law in this way, but his plan does not go far enough because states could still allow individuals in institutional settings to report only to supervisors. This would have changed nothing at Penn State.
Congress should amend the Clery Act to require not only statistical accounting of crimes on campus, but also the immediate and direct reporting of child abuse to protective service agencies. Failure to report should carry the same sanction as other Clery Act violations, such that noncompliant universities face substantial fines.
Mandatory reporting laws should be amended to require individuals in institutional settings to file reports both internally, directly to the head of the organization, and externally, to child protective services.

Laws in about two-thirds of states, either explicitly or implicitly, allow employees to report only to a supervisor, rather than to outside authorities. The worst jurisdictions (other than states like Maryland where failure to report is not even a crime) are Pennsylvania, Massachusetts, Georgia, Idaho, South Dakota, Virginia and the District of Columbia where the legal authority to report only internally is explicit.

Only 10 states currently require both internal and external reports. The best jurisdictions include California, Minnesota, Illinois and Hawaii where the relevant laws say something like this: “Any person with reasonable cause to believe a child has been abused and who is a member of the staff of any public or private school, agency or institution shall immediately file a report with child protective services and shall also immediately notify the person in charge of the school, agency or institution.” This language provides the best protection not only from abuse but also from the danger of institutional cover-ups.
Mandated reporters should be required to put their reports in writing. This would help hold institutions accountable by preventing them from denying that a report was made.

It would also prevent what happened at Penn State when officials claimed they received a report of abuse in 2002 but that it involved allegations of only “harmless horseplay.” Had the reports been reduced to writing, it would have been impossible for Penn State officials to lie about whether they knew a child has been raped on campus.

Universities are infamous for feigning a lack of knowledge about scandalous information because they understand that the more they know, the greater their risk of negative PR and liability if information about the scandal ever gets out. Reducing reports to writing is the best way to protect against deniability tactics.
Employees who make reports to outside agencies must be protected from retaliation with whistleblower-type laws, especially in states where the law or employment policies call for only internal reporting. Employees in these jurisdictions can be sanctioned and even fired for reporting to outside authorities. Only a handful of states currently provide employees with protection from retaliation.
Finally, failure to report should be a felony. A first offense failure to report child abuse is only a misdemeanor in every state where non-reporting is a crime, and the punishment is a meager fine.

When institutions weigh the burden of paying a fine against the downside of being known as a place where a child was abused, they will choose secrecy every time. The risk of a felony prosecution will better offset the benefits of non-reporting.

Some argue that ramping up punishment for non-reporting is dangerous because of the potential for false reports, but this myth-based concern has no basis in reality. In fact, people will likely be more cautious about filing only credible reports when the consequences are more serious.

Whatever the risk of false claims, it’s wrong to treat the crime as if it’s no more serious than a traffic violation. So few children speak out about abuse that we need to encourage more reporting, even if it means capturing claims that may not be provable.

Better to protect thousands more children from real abuse than to worry about the occasional adult being burdened by a false accusation. For lawmakers who want more protection against false allegations, they could add a provision that allows for the prosecution of individuals who make false reports in bad faith.

Five children die from abuse every day in this country. Millions are sexually abused each year. This epidemic needs a leader with courage to step up and shame our nation as a whole for not doing more and to insist that the proposals outlined above be implemented immediately.

The Penn State scandal is but one example of the way we systematically fail to protect children from harm. Lawmakers are sprinting out of the woodwork to prop themselves up as heroes ready to fix what's broken, but not a single one has offered ideas that will stop us from enabling the very abuse we purport to abhor.

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